Weekly Notes: legal news from ICLR – 22 August 2014

This week’s selection looks like a Bank Holiday Celebrity Special, with Cliff Richard and the shadows of controversy, Julian Assange and his novel predicament, and Shakespeare’s fatal injunction challenged. Plus law and injustice from around the globe.

UPDATED: 26 August 2014

We’re all going on a summer holiday…

Last week the police swooped on the Berkshire home of Sir Cliff Richard in execution of a search warrant, as part of an investigation into an alleged historic sex offence said to have occurred in Sheffield in the 1980s.

Although we have got pretty used to the way the Wheel of Accusation has spun in recent months, suddenly pointing to fading stars of stage, screen and radio hitherto considered relatively blameless (but you never know, do you?), the image generated by Sir Cliff is one of embarrassing national treasurehood. Didn’t we all cringe when he struck up the vocal chords at Wimbledon the other year, to entertain the captive audience when it rained. The idea that he, of all people… And yet, it transpires that there have been shadowy rumours circulating on the internet, allegations of historic sex crimes, which Richard declined to dignify with a response, he now says.

Be that as it may (or may not), the way in which the warrant was executed has given rise to considerable controversy. Given that the police arrived to find the media already waiting outside the premises, with a helicopter hovering above, the question on everyone’s lips was: who tipped off the media? South Yorkshire police, who carried out the search, denied doing so; the BBC would not say. It turns out the BBC was itself investigating the matter and South Yorks police “worked with” them, possibly with the (improper) aim of flushing out more complainants. In which apparently they succeeded, though whether the complaints were genuine or simply opportunistic remains to be determined.

People believe that where there’s smoke there’s fire, but sometimes there is just a smoke machine.

… police subverted due process by waiting until Richard had left for vacation, and then orchestrating massive publicity for the raid on his house, before making any request for interview and before any question could arise of arresting or charging him.

Police initially denied “leaking” the raid, but South Yorkshire Police finally confirmed yesterday afternoon that they had been “working with a media outlet” – presumably the BBC – about the investigation. They also claimed “a number of people” had come forward with more information after seeing coverage of the operation – which leads one to suspect that this was the improper purpose behind leaking the operation in the first place. This alone calls for an independent inquiry.

Robertson criticised several aspects of the way the case had been handled, but in particular he identified the system of allowing lay magistrates to rubber stamp warrant requests as the “Achilles heel of our civil liberties”. He recommended that search warrants in future should only be granted by judges.

Obiter J did not necessarily agree. In his blog on Search Warrants, he provided a helpful summary of the law dating back to the 17th century, including the seminal case of Entick v Carrington95 ER 807, before commenting:

Without knowing the full circumstances surrounding the issuing of the warrant, I hesitate to agree with Robertson that all search warrants should be issued by judges though, in fairness, the idea will not be without attraction to some.

the very public police raid on Cliff Richard’s home was a grotesque example of the pernicious inquisitorial spirit at the heart of today’s historic investigations of child abuse.

He argued that this was another example of “reality policing”, the aim of which was primarily a PR exercise rather than a genuine crime-solving or prevention exercise. At most, it the issue of the warrant was effectively a kind of “fishing licence”, since the chances of finding evidence of a crime alleged to have been committed a quarter of a century ago, and far from this location, were virtually non-existent:

In the real world of crime-solving, police raids are usually aimed at discovering something real and tangible that will help crack a case. In the sphere of reality-policing, in contrast, the search itself is the important thing, the most symbolically significant element. It was very obvious that the police raid on Richard’s home was not about finding evidence that might link Richard to the allegation of sexual assault made against him.

According to The Times (Police deal with BBC may mean Sir Cliff search was illegal), several “senior law figures” including the former DPP, Lord Macdonald of River Glaven QC, had criticized the police and suggested the search may have been illegal, particularly if the application for the warrant submitted by S Yorks police failed to disclose the involvement of the BBC.

Lord Macdonald said that it was “possible misleading by omission”. He added: “To apply for a search warrant, having come to an arrangement with a media organisation in advance, so that the warrant can be used to create an event designed to reflect favourably on the police, is completely disreputable conduct on the behalf of the police. It is possible that the failure to disclose these facts renders the warrant unlawful.”

Sir Cliff himself, meanwhile, who was on holiday in Portugal at the time of the search, was reported (by Sky News) to have instructed “top criminal lawyer Ian Burton” of BCL Burton Copeland, who has previously acted for several well known figures, including “football manager Harry Redknapp, who was cleared of tax evasion, PR agent Max Clifford, who was jailed for sex offences, and former Harrods owner Mohamed Al-Fayed.”

No doubt all his fans will hope these shadows of allegation don’t haunt him quite as successfully as his original backing band. (Sorry, but someone had to say it.)

A Picture of [Equa]dorian Gray

Julian Assange, currently in self-imposed exile in the Equadorian embassy, briefly popped his head above the parapet this week to declare that he hasn’t gone away yet, but that he still might…

Marking the fourth anniversary of the issue of an arrest warrant by the Swedish authorities on 20 August 2010, and two years since he was offered asylum by the Equadorian Embassy, Mr Assange gave a brief press conference, saying that he’s planning to the leave the embassy “soon” – but not when.

The founder of the Wikileaks website, whose extradition is sought by Sweden in respect of alleged sex offences, including rape, dating from 2010, was offered political asylum by Ecuador in 2012, just as he was about to be seized by the UK authorities, and has been holed up in their embassy ever since. He claims that the real purpose of the extradition is so that he can be further extradited to the USA to face charges relating to his publication of state secrets and other politically embarrassing material on Wikileaks.

His challenge to the validity of the extradition warrant obtained against him by the Swedish Prosecution Authority has already generated two decisions of the Supreme Court (the latter an attempt to reopen the former): Assange v Swedish Prosecution Authority [2012] UKSC 22; [2012] 2 AC 471; [2012] 2 WLR 1275 and [2012] 2 AC 471; [2012] 3 WLR 1, SC(E). (Subscription needed for law reports.)

Having noted that it was the Ecuadorian foreign minister, Ricardo Patino, who had remarked that a change in the law meant Mr Assange would not be facing extradition if the case started today, he explained:

Sarcastic commentators, such as Jasper Hamill at The Register, have suggested that the press conference was simply a PR exercise aimed at reminding a world more impressed by the whistleblowing of Edward Snowden, that

“Hey world, I’M STILL HERE, ignore that Snowden guy.

Press conference: ME ME ME ME ME ME ME (cont’d pg 94).”

The Equadorian Embassy is located in London’s immaculately coiffured Knightsbridge district, not far from Harrods and Harvey Nicholls. Assange is apparently suffering a number of health issues, and now doesn’t look quite as good as his pictures, but as he’s the one in the attic, we could call him the very picture of Equadorian Gray.

Though accepting that “Ecuador is obligated to protect Assange in our embassy until he can fully enjoy his right to asylum”, it goes on to detail the fugitive’s health problems and the risk of having to deal with a medical emergency without access to hospital care, concluding that the situation amounts to a stalemate which the two governments should now sort out:

Two years is enough time. A viable solution to this situation must be found.

Given that Assange is there of his own volition, in response to the Equadorian’s invitation, freely offered and freely accepted, the suggestion (made by a Wikileaks spokesperson) that he has in some sense “undergone torture” will probably garner little sympathy. Is he suggesting he is somehow the victim of constructive imprisonment or something?

STOP PRESS: According to publisher Carmen Callil, speaking in a Proms discussion of literary Melbourne, the new novel by Peter Carey, Amnesia, due shortly, is “really about Assange”.

English Common Law Hale and Hearty (and not in thrall to European Jurisprudence, says top woman judge)

Are UK courts reasserting their independence from Europe?

In a speech given to the Constitutional and Administrative Law Bar Association Conference 2014, Baroness Hale of Richmond, deputy president of the UK Supreme Court,said a theme was emerging from recent court decisions which suggested that UK constitutionalism was “on the march”:

after more than a decade of concentrating on European instruments as the source of rights, remedies and obligations, there is emerging a renewed emphasis on the common law and distinctively UK constitutional principles as a source of legal inspiration. Sometimes this expands the range of what is available, sometimes it may constrict it. But it seems to me to take us in some interesting directions, beyond the well-worn theme of “what’s wrong with the Ullah principle?

“ the English court was obliged to take account of the case law of the European Court of Human Rights and should, save in special circumstances, follow its clear and constant jurisprudence.

Lady Hale continued:

One aspect of this resurgence has been the emphasis by the courts on the power and continuing primacy of common law rights. There has been a tendency to assume that after the enactment of the Human Rights Act 1998 the European Convention on Human Rights should be the first port of call. But, it is said, this is to misunderstand the relationship between the Convention and the common law in our domestic law, and to overlook the continued and developing protection offered by the latter.

The speech is worth reading in full, and topically enough refers at the end to Lady Hale’s and Lord Mance’s dissent in the Assange case, where she says:

I would have applied the clear intention of the UK legislature to restrict the meaning of ‘judicial authority’ to a court rather than the unclear meaning of the same term in the EU instrument.

Don’t let’s be beastly to the lawyers

Will Shakespeare please stop saying “let’s kill all the lawyers”

Instructed to attend the Last Judgment

The Wall Street Journal, august, prolific, but probably suffering from the usual silly season shortage of real news stories, ran on Monday with a story by a lawyer about what Shakespeare really meant by that phrase “First thing we do, let’s kill all the lawyers.” Apparently, it doesn’t mean what everyone thinks it means, ie that lawyers are bad. Quite the contrary, argued Jacob Gershman, it actually reveals the Bard’s love of lawyers, or at any rate his unconditional support for all the good they do. The character who says it is simply exposing for our amusement his own badness, or anarchic spirit, or whatever.

The trouble is, Shakespeare exegesis is apt to be almost as convoluted as the Biblical variety. Best thing to do, just laugh at the joke and move on. The play’s the thing. Law isn’t.

This week’s slightly silly story…

concerns intellectual property, but not as we know it.

It seems that when STAR WARS fan Laura Matthews, having changed her name by deed poll to include the middle name Skywalker (after Luke Skywalker in the Star Wars series of films) tried to get her passport renewed using the signature L Skywalker, the Passport Office refused on the grounds that the word “Skywalker” was a registered trade mark.

The fact that the person wasn’t using the name in the course of trade seems to have slipped under the PO’s radar, or knowledge (if any) of IP law. Unlike the IPKat blog, which gave the story proper legal consideration.

Our own correspondent @maggotlaw writes:

I’m quite worried now, because my first name is also the name of a well known French café chain, who must surely have registered it as a trade mark. Even if they haven’t, the Passport Office may think I’m pass[port]ing myself off as a foreign baker, or taking the patisserie or something.

Law and injustice around the world

China

Human rights lawyer Pu Zhiqiang could get ten years in prison.

Asia News reports that Pu could be charged with “collusion” with foreign powers, and get ten years in prison, following meetings with a former US ambassador to China, his frequent trips to Japan, and his online “insults” against senior officials, including Mao’s grandson.

As one of the most open critics of the Chinese regime, Pu Zhiqiang is well known for providing legal aid to workers, peasants, artists like Ai Weiwei as well as members of the New Citizens’ Movement, a group that has urged Chinese leaders to disclose their assets.

As a veteran of the 1989 student protest movement, he was jailed last May for participating in a seminar to commemorate the Tiananmen massacre.

Egypt

The three Al-Jazeera journalists jailed for offences of spreading false news, endagering national security and supporting a banned organisation, the Muslim Brotherhood, have now lodged an appeal.

The case will now be heard before the Court of Cassation, which will examine the grounds for a full hearing, for which a date has not been set. Thursday’s announcement by the lawyers for Peter Greste, Baher Mohamed and Mohamed Fahmy comes just days after leading human rights lawyer, Amal Alamuddin, demanded the release of the trio, saying the case was an example of how to set up a “kangaroo court”.

Ms Alamuddin wrote a blog for Huffington Post, The Anatomy of an Unfair Trial, in which she accused the Egyptian regime of putting on show trials, not just for the journalists but for all its political opponents, real or imagined.

Sentencing a political opponent to death after a show trial is no different to taking him out on the street and shooting him. In fact, it is worse because using the court system as a tool of state repression makes a mockery of the rule of law. Egypt’s constitution guarantees the right to be presumed innocent. And yet in a recent case, an Egyptian judge — after a “trial” lasting 100 minutes — sentenced 529 Muslim Brotherhood supporters to death.

Egypt’s constitution also guarantees freedom of speech, yet many journalists languish behind bars. Three journalists working for the Al Jazeera English news network — Canadian Mohamed Fahmy, Australian Peter Greste and Egyptian Baher Mohamed — are among them. Mr. Fahmy used to work for CNN and the New York Times. Mr. Greste worked for the BBC and had only been in Egypt for a few days before his arrest. I am Mr. Fahmy’s lawyer and have had contact with him in Egypt. I have studied the case file, read the reports of trial observers who were at each court session, and read the judgment that sentences the journalists to lengthy prison terms of seven years or more. It is clear beyond doubt that their trial was unfair, and their conviction a travesty of justice.

India (1)

Indian government fails acid attack survivors, activists say

The Women’s Media Centre’s Women Under Seige blog reports that despite India’s Supreme Court having in 2013 directed central and state governments to regulate over-the-counter sales of acids in a bid to curb attacks on women, those rules have still not been implemented a year later.

Every year, almost 1,000 acid attacks are reported in India, while many more go unreported, according to the London-based Acid Survivors Trust International.

Moreover, the compensation paid (about 300,000 rupees) in inadequate to cover the cost of reconstructive surgery, let alone the pain and suffering resulting from the disfigurement. And some governments have not even paid. The post recounts several horrific case histories.

Acid attacks appear to be yet another aspect of the Indian government’s failure to protect women.

India (2)

India prepares to carry out first ever hanging of women convicts

According to the Independent, India is confronting the prospect of hanging two sisters convicted of abducting and murdering young children – the first time it would have used the death sentence against women. Apparently, they kidnapped the youngsters as part of a begging operation and then brutally disposed of them when they were no longer of any use. The report continues:

In 2004, an appeal court upheld their death sentence and two years later India’s Supreme Court did the same. Last month, India’s President, Pranab Mukherjee, rejected their appeal for clemency and at the weekend the so-called buffer zone – the period by when the government is obliged to inform all concerned parties of the president’s decision – expired.

The women, being held in Yerawada Central Jail near the city of Pune, could, in theory, be hanged at any time.

Though the crimes they committed were heinous, the infliction of any death penalty is a retrograde step for a civilized nation; and to hang these women in India now seems only to add to the sense of a country in which life, particularly female life, is not valued or respected.

Kuwait

Kuwait’s new telecommunications law gives the government sweeping powers to block content, deny access to the Internet, and revoke licenses without giving reasons,according to Human Rights Watch.

Communication law 37/2014, adopted on May 18, 2014, establishes a Commission for Mass Communications and Information Technology (CMCIT), as an independent body under the supervision of the communications minister with broad discretionary powers to grant or rescind licenses to companies that provide Internet cable, satellite, and land and wireless phone connections. The commission would begin its work by November 18. The law imposes harsh penalties on people who create or send “immoral” messages, and gives unspecified authorities the power to suspend communication services on national security grounds. Any communication service provider that “contributes” to the dissemination of messages that violate these vague standards can be punished. The law provides no opportunity for judicial review.

“This new law comes at a time when Kuwait is prosecuting many activists, politicians, journalists, and other government critics on expansive interpretations of morality and national security,” said Eric Goldstein, deputy Middle East and North Africa director. “It appears designed to give prosecuting authorities even wider legal authorization for violating Kuwaitis’ right to free speech.”

In the article Goldstein goes on to detail the provisions giving rise to concern and lists key concerns and recommendations.

United Nations

The Secretary-General condemns in the strongest terms the horrific murder of journalist James Foley, an abominable crime that underscores the campaign of terror the Islamic State of Iraq and the Levant (ISIL) continues to wage against the people of Iraq and Syria. He extends his deepest condolences to the family, friends and colleagues of Mr. Foley. The perpetrators of this and other such horrific crimes must be brought to justice.